Two Louisiana Student Privacy Bills Compete

This is a re-post of a blog by Stephanie Beard comparing two bills introduced in the Louisiana legislative session relative to parental concerns about student data privacy. It is very thorough and useful for others in presenting testimony or communicating with these committee members.

Rep. John Schroder from St. Tammany Parish is the man of the moment for parents having introduced a student privacy bill that is responsive to every concern including the lies and misrepresentations of State Supt. John White - which have been well documented to the committee. His bill was introduced to a House Ed.

I’ve never gotten involved in trying to affect legislation or anything that involves the workings of our legislative process. For far too long I could have been described astrusting: Trusting that the people and groups who call themselves “conservative” have my best interests in mind as they fight for and against legislation that would affect my small world. Trusting that they – as sworn defenders of the Constitution – would do just that: defend the Constitution. Defend my rights and yours, and those of our families.

No more. NoLongerSilent.net addresses my growing disillusionment over the last year since beginning research on the Common Core Initiative and all its trappings. My previously held beliefs about the major political parties have been challenged, and the one I’ve always belonged to has, unfortunately, come up lacking.

Wednesday held a first for me. I went to the Capital building in Baton Rouge to speak up in favor of a bill that a St. Tammany Parish legislator filed in an attempt to get a handle on student data privacy.

Rep. John Schroder of Madisonville, Louisiana filed HB946 this session, which came for its first consideration on Wednesday morning before the House Education Committee. This bill contains strong provisions for student data privacy and parents’ rights in protecting that privacy. It’s a very restrictive bill, enumerating a lot of the rights for which parents should never have to ask the legislature in the first place because they areGod-given rights – not something that government (federal, state, or local) gives or takes away at will: the right to protect our own children’s privacy.

Superintendent John White threw monkey wrenches in the way in his attempt to jettison this bill, and meanwhile – down a couple of corridors and downstairs – Senator Conrad Appel of Metairie engaged in his own monkeying and wrenching. Several of us felt compelled to attend his hearing, thus leaving the House Education Committee meeting after speaking there.

Senator Appel’s bill, SB449, pretty much follows ALEC model legislation, only his version happens to be even worse than ALEC’s. I know – I didn’t think that was possible, either. Apparently, it is entirely possible.

Notice that ALEC names its model bill, “Student Data Accessibility, Transparency, and Accountability Act.” I know – hard for me not to snort every time I read it, too. Sen. Appel named his, “Privacy and Protection of Student Data.” More snickers, I know.

Sen. Appel’s bill compares almost directly to ALEC’s, only his leaves out certain things ALEC’s includes that could – under different circumstances – almost be palatable. (And, no, Senator – we won’t be appeased by substituting the ALEC version at the last minute to suit your purposes.)

Senator Appel riddles his bill with exceptions and “unless” clauses that weaken every measure one might get excited about reading but for them. Here’s an example. The ALEC model includes this provision (emphasis added is mine):

Districts shall not report to the state the following individual student data:

(1) juvenile delinquency records;

(2) criminal records;

(3) medical and health records; and

(4) student biometric information.

Schools shall not collect the following individual student data:

(1) political affiliation; and

(2) religion.

Here’s Sen. Appel’s (emphasis added is mine):

Unless included in a student’s educational record, student data shall not include:

(i) Juvenile delinquency records,

(ii) Criminal records,

(iii) Medical and health records,

(iv) Student Social Security number,

(v) Student biometric information.

Sen. Appel’s fails to mention any prohibition of collecting political or religious information. Did he think we wouldn’t notice?

Sen. Appel adds a provision, §4053. A., mandating that BESE develop and oversee implementing a privacy and protection policy for student data. Then, part B of this section sets up the supposed transparency part of the Act, namely, that BESE will make some kind of index of data elements publicly available. The index supposedly will let us know what types of individual student data are kept in the database, along with the purpose for collecting it, as well as what data they have for no “current purpose or reason.” Not exactly comforting. But let’s keep dissecting.

SB449 §4053 C. (1)(d) includes another ALEC subpoint that looks to retroactively sanction the state’s data sharing agreements with the state’s workforce commissions (in this case, Superintendent John White’s agreement with the Louisiana Workforce Commission), and the

language in this bill even adds “memorandums of understanding” to ALEC’s version that limits the verbiage to “interagency data-sharing agreements.”

From there, Sen. Appel’s bill goes into a series of “unlesses” that scream, “This allows BESE to completely undo everything that looks good in this paragraph!” We know, of course, that they will do so. BESE has a history.

§4053 D. (3) glares out at us as one of the most obviously egregious provisions of Sen. Appel’s bill. I’ll paraphrase this one as: Student data deemed confidential in this Chapter may absolutely be transferred toany federal, state, or local agency or “other entity outside” Louisiana if a “student registers for or takes a national or multistate assessment.” This is not even limited to a stated educational purpose, folks – not that that would be any better, as we know we couldn’t trust our kids’ laundry with these people, much less their personal confidential information.

I cannot emphasize enough the dangers inherent in this one sentence alone!

Realize that Governor Jindal and John White, through BESE and the LDOE, pushed through their agenda to make taking the ACT a requirement for every Louisiana student who wants a high school diploma. Consider all the other tests they are now requiring kids to take. (And Governor Jindal said last week that he doesn’t like one-size-fits-all testing?)

Then, think about these four points. (1) If a student follows the rules (because he wants a high school diploma – and who doesn’t), and registers for the ACT, his confidential data will most likely be transferred to anyone Baton Rouge wants to give it to – by law! All it takes is for BESE or LDOE to interpret this provision as allowing it because the ACT is a “national” assessment, and it’s administered in every state. (2) If a student sits for those PARCC multi-state, CCSS-

aligned tests mandated for Louisiana students next school year, his confidential data will be

transferred to anyone Baton Rouge wishes to give it to – by law! (3) Consider all the other “assessments” that BESE has mandated every student take (such as the expanding “ACT series”) by tying them to School Performance Scores (SPS), teacher evaluations, district scores, and student promotion. Could these be construed as “national” or “multistate” assessments? (4) Consider all the other “multistate” or “national” assessments/tests of which you can think. Has your child taken the NAEP, for instance?

If your child takes, or even registers for without taking, one of those tests, this bill gives authority to the state to “transfer” “student data” to whomever they wish. We already know that some students were signed up for the Course Choice program without requesting to do so last year.

Next, the bill provides for this same transfer of confidential information if a student participates in any program “for which such a data transfer is a condition or requirement of participation.” So, all BESE needs to do is add — by policy — a data transfer requirement for, say, the Jump Start “career” education program John White introduced recently.

Would our LDOE sign kids up (register) for tests without parental requests or consent? Who could put it past them?

Make no mistake. This bill gives to the least trusted people in our state government — carte blanche — the right to give or sell our children’s confidential information without our consent.

The next paragraph would have BESE make guidelines for authorizing access to “individual student data.” Then the bill omitsthe ALEC suggested provision for data encryption and

safeguards. Guess he thought we wouldn’t see that, either.

Then there’s this about “complaints” regarding enforcement or violations: complaints must be

made and remedied in accordance with FERPA. As we all well know, FERPA is now toothless.

The next two major provisions in the bill can only be described as insidious. The first one says that any newdata items that BESE or the LDOE would like to collect and share would be routed through the Administrative Procedure Act (APA) – not through the legislature. After the fact, BESE would give an annual report to the legislature.

In case you don’t know, the APA allows arms of government to do what they want, write it all up, put it on the state’s website for 90 days for public comment, hold a hearing between 35-45 days after posting notice, then it becomes the rule that we all must follow. Oftentimes, they later go to the legislature to get them to codify what they’ve already done or are doing. (It’s very much the way things happen in D.C., as well.) They do this so that — in order for the public to be engaged, informed, and involved — we must watch every single action of every single state agency through the Louisiana Register, rather than the single elected entity, the legislature. That way, they get to claim that public notice was given, nobody should have been surprised, nobody filed any complaints, nobody spoke out against what they said “publicly” they were going to do. It is a way to bypass elected bodies and implement whatever policies they wish.

Please understand that this is how BESE and LDOE have gotten away with most of the recent crafty changes that they’ve made in Louisiana education. This is precisely how we got all those “accountability” rules, too. Very quietly. By design.

If they don’t have to have legislative approval – as would have been required under the original

version of Sen. Appel’s bill, before Wednesday’s amendments – then they once again get to bypassvoters. This is just one more example of the legislature’s giving away their authority to BESE (of which not every member is an elected position) and LDOE. These folks don’t want any opposition. Very slick to make this change by amendment that was distributed at the time the bill

was taken up in committee on Wednesday, so that there would be very little time for those of us who were there to absorb and react to it. Very slick indeed.

That second major provision I mentioned creates a new BESE-appointed position called a “chief privacy officer.” The Privacy Czar in SB449 would have the job of monitoring “emerging and evolving technology” and then recommending “policy changes” to ensure “privacy and protection of student data.” The Czar would also ensure legal compliance. Want to venture a guess as to how these “policy changes” would become rules? Yes — the APA.

The ALEC version adds several additional duties for the Czar that one might expect a public servant to have. Sen. Appel’s bill omits these duties. I guess he thought them unimportant.

The last paragraph in §4053 is one not contained in ALEC’s. Sen. Appel’s says that any data elements/itemscurrently being collected by the data system would not have to be vetted to the legislature. The APA would be sufficient for those. Note also that BESE could grant exceptions regarding release of student data, and not have to explain any of those for an entire year. Outrageous.

Finally, §4054 prohibits the use of Social Security numbers as student identifiers – after the 2014-15 academic year – and qualifies even that by saying that “a postsecondary education management board” canabsolutely use SSNs for, among other things, “workforce training activities” and “accountability measures.” So, yes, they apparently are using SSNs as student

identifiers currently, and some arms of the state can continue to do so.

This horrendous bill also omits the last sections that ALEC’s provides that would have included the right for parents to inspect their child’s educational records at the school, to request data from their child’s records, to receive an electronic copy of their child’s educational record, and the like,

and to receive annual notice of these rights. (I admit that, arguably, this portion could have been omitted because it could be addressed elsewhere under another legislative topic. But I doubt it.)

Seriously, you can’t make this stuff up! Please read this bill (or for those in other states, your own ALEC-modeled bill) and you’ll see for yourself the truth about what Senator Appel — a consummate education reformer — would do with our children’s confidential information.

An op-ed in The Advocate on Saturday gives Senator Appel’s response to Wednesday’s Senate Education Committee hearing as

. . . he was exasperated that inflammatory rhetoric had so swamped efforts to rationally improve Common Core.

He was incensed?

And did you notice that the distinguished senator himself — not parents — linked parental concerns over their children’s data privacy to Common Core?

A video of mom Sara Wood’s pointed statement to the Senate Education Committee against SB449 has circulated widely since Wednesday. That video disappeared from YouTube for a few hours when the mom who posted it had her YouTube account wiped out for her. That someone

would do this speaks volumes.

And here’s the volume that Ihear: The elitist reformers fear us. They fear that they have been found out, and that we are on to their schemes. They fear that they still do not have all the hearts and minds of America. They fear our voices. They fear that we will get our message out before

they can completely silence us by removing all elected forms of government, and replacing them with their form of “governance.” (Oh, yes, Elitist Reformers, we do know that term. I wasn’t kidding – we are on to you.)

But why? Why fear us? Because they will lose being looked up to and respected by those who respect theoffices or positions they hold. They may not be elected to the next taxpayer-funded office, or get that coveted position among the board of a taxpayer-funded so-called “public-private partnership.”

They currently disbelieve that we mere mortals would dare question them.

It boils down to this: they fear us because it means a loss of power. A loss of control. And so they react nastily by marginalizing us and attempting to “Delphi” us.

Here is my message to the elitist reformers of our country. We won’t stop. We will continue finding all the things that you do and have done to eliminate your accountability to the public by putting layers of unelected bureaucracies between yourselves and voters. And we will continue to expose you and your plans, because we will no longer be silent.